FTC v. Foucha, Civ. A. No. 72-1060-S.
| Decision Date | 16 March 1973 |
| Docket Number | Civ. A. No. 72-1060-S. |
| Citation | 356 F. Supp. 21 |
| Parties | FEDERAL TRADE COMMISSION, Plaintiff, v. Norman J. FOUCHA et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
Wayman G. Sherrer, U. S. Atty., Sara D. Hamilton, Asst. U. S. Atty., Birmingham, Ala., Gregory B. Novendon, Atty., Dept. of Justice, Ronald M. Dietric, Gen. Counsel, Harold D. Rhynedance, Jr., Asst. Gen. Counsel, Nicholas S. Reynolds, Atty., F. T. C., Washington, D. C., for plaintiff.
Gary P. Smith, Birmingham, Ala., Joseph J. Lyman, Washington, D. C., for defendants.
This case raises the question of who, by what procedure, can give the "approval of the Attorney General" to the issuance of an order directing a witness in an administrative hearing to give evidence that, but for 18 U.S.C.A. § 6001 et seq., would be protected by the Fifth Amendment.
This action was brought by the FTC under 15 U.S.C.A. § 49 for an order compelling four recalcitrant witnesses to obey an order issued under 18 U.S.C.A. § 6004. In the initial sparring, the Commission took the position that this proceeding was but a summary procedure, dispensing with the Federal Rules of Civil Procedure. The court, however, ruled that it was to be an adversary proceeding, United States v. Powell, 379 U. S. 48, 58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), and further held that the Federal Rules do apply, with the petition and show cause order being treated as a complaint. See United States v. Pritchard, 438 F.2d 969 (5th Cir. 1971), citing Federal Rule 81(a). At the hearing on the show cause order, the court determined that few factual matters were in dispute, and requested the parties to conduct informal discovery to determine if the potential factual disputes could be resolved.
The statute in question, 18 U.S.C.A. § 6004, allows an agency to issue such an order "with the approval of the Attorney General." Here the FTC relies upon a letter of approval signed by Walker B. Comegys, the Acting Assistant Attorney General in charge of the Antitrust Division of the Department of Justice. It points to the following delegation orders issued by the Attorney General under the authority of 28 U.S.C. § 510:
It is admitted that Mr. Comegys was the Deputy Assistant Attorney General in charge of the Antitrust Division and that on the resignation of the Assistant Attorney General for the division he had become its Acting Assistant Attorney General.
What is in controversy is whether anyone other than the Attorney General himself can give the approval specified in 18 U.S.C.A. § 6004. Stated another way, are the delegation orders in 28 CFR § 0.175(c), 0.178(a) permissible under that statute? The answer to these questions involves a comparison of the language of § 6004 — "approval of the Attorney General" — with that contained in another section of the same act, § 6003 — "approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General."
Three explanations can be given for the difference in language. First, the difference may have been inadvertent, indicating no conscious differentiation by Congress in the two sections. Second, Congress may have intended that only the Attorney General personally could give approval under § 6004, while other high level members of his office could have authority to give approval under § 6003. Third, Congress may have intended that only specified high level members of his office could have authority to give approval under § 6003, while leaving the Attorney General with respect to § 6004 with a broader power of delegation under existing 28 U.S.C. § 510.
The legislative history sheds little light on the intent of Congress. However, House Report No. 91-1549 in its section analysis of § 6004 states:
"It is assumed that the Attorney General will take such ... steps as are necessary to insure that his office is familiar with the immunity-granting procedures of each agency, in order that issuance of such orders might be expedited and no orders will be issued without authorization." (Emphasis added.)
This suggests that persons other than the Attorney General himself were expected to play a function in the approval process. And, indeed, if issuance of such orders was to be expedited, it is doubtful that Congress intended that only the Attorney General personally could give approvals under § 6004.
I conclude that the third explanation should be adopted — that Congress, by failing to specify in § 6004 () additional persons in the Attorney General's office who could grant approvals, intended to give the Attorney General the broader range of authority to delegate existing under 28 U.S.C. § 510. It is of significance that the predecessor of this legislation, 18 U.S.C. § 2514, had contained the words "approval of the Attorney General" and that, in practice later endorsed by the courts, this had permitted delegation under 28 U.S.C. § 510. December 1968 Grand Jury v. United States, 420 F.2d 1201 (7th Cir. 1970); United States v. DiMauro, 441 F.2d 428 (8th Cir. 1971). On the other hand, use of additional words such as found in § 6003 has been held to indicate a limitation upon the power to delegate. See United States v. Robinson, 468 F.2d 189 (5th Cir., # 71-1058, Jan. 12, 1972); cf. United States v. Pisacano, 459 F.2d 259 (2nd Cir. 1972). That Congress has not forgotten about the general power of delegation existing under 28 U.S.C. § 510, see the explicit language in the Civil Rights Act of 1968, 18 U.S.C.A. § 245(a)(1).
Support for this conclusion can be found by noting another difference in §§ 6003 and 6004. In § 6003, the key value judgment (i.e., necessary to the public interest) is to be made solely by personnel of the Department of Justice. In § 6004, that judgment is essentially the responsibility of another agency of government, with the Department of Justice playing a secondary role. It would be somewhat incongruous if only the Attorney General personally could perform the "secondary" role under § 6004, while permitting his subordinates to perform the functions under § 6003 for which the Department of Justice must bear the sole responsibility to the public.
The defendants next argue that Comegys, the Acting AAG, had not been delegated authority under § 6004. This is but a matter of interpretation of the published delegation orders. I find nothing in Order 445-70, as published in 35 F.R. 19397, December 23, 1970, to indicate that the Attorney General intended thereby to revoke for such purposes the provisions of 28 CFR § 0.132(d) which direct — not merely empower — a ranking deputy such as Comegys to perform the functions of the Assistant Attorney General upon a vacancy in that office. In the absence of clear language to the contrary, I conclude that 28 CFR § 0.132(d) remains in effect for purposes of the approval process covered in Order 445-70 — particularly since the logical extension of the defendants' contention would result in an hiatus of dire consequences should, for example, there be a vacancy in the office of the Attorney General himself. It should further be noted that 28 CFR § 0.178(a) reflects the willingness of the Attorney General to have a ranking Deputy perform the functions of the AAG during his temporary absence.
The defendants finally argue that there was — or may have been (for which formal discovery is needed) — a failure to obtain the concurrence of the Assistant Attorney General in charge of the Criminal Division, as required by the last clause of 28 CFR § 0.175(b). Several reasons are urged by defendants, each aimed at a purported failure in the Attorney General's office to follow its own procedures.
They point out that the FTC's request for approval was transmitted to the attention of the Criminal Division of the Attorney General's office (rather than to the Antitrust Division, to which only an informational copy was sent). They also note that the purported concurrence of the AAG, Criminal Division, was given prospectively, and apparently before request from the AAG, Antitrust Division. The court concludes that these matters are immaterial — to establish an internal "clearing house", it was quite appropriate to designate the Criminal Division; and that "concurrence" under 28 CFR § 0.175(b) can be given in the following form, albeit prospective and anticipatory:
"I defer to your judgment as to the advisability of approving the request for authority to issue an order to compel the testimony of this person named above pursuant to 18 U.S.C. 6004, and, if you decide the approval of the request is warranted, will concur in your approval pursuant...
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